Defendant-appellant
Askia Washington was ensnared by a "stash house reverse
sting" operation-one which hit many of the
by-now-familiar beats.[1] Acting on what appeared to be insider
information from a drug courier, Washington and his three
co-conspirators planned to rob a Philadelphia property where
they thought 10 kilograms of cocaine were being stored for
distribution. But as they discovered on the day of the
robbery, the "stash house" was a trap set by law
enforcement. Their "courier" was an undercover
federal agent with the Bureau of Alcohol, Tobacco, Firearms
and Explosives ("ATF"), which had developed the
scenario from the ground up. The cocaine did not exist.

Under
federal law on conspiracy and attempt, the government could,
and did, prosecute the crew as if fantasy had been reality.
Washington, the sole member to take his chances at trial, was
convicted by a jury of two Hobbs Act robbery charges and two
drug charges (18 U.S.C. § 1951(a) and 21 U.S.C. §
846), although he was acquitted on a gun charge.

Developed
by the ATF in the 1980s to combat a rise in professional
robbery crews targeting stash houses, reverse sting
operations have grown increasingly controversial over the
years, even as they have grown safer and more refined. For
one, they empower law enforcement to craft offenses out of
whole cloth, often corresponding to statutory offense
thresholds. Here, the entirely fictitious 10 kilograms of
cocaine triggered a very real 20-year mandatory minimum for
Washington, contributing to a total sentence of 264 months in
prison-far more than even the ringleader of the conspiracy
received. For another, and as Washington claimed on multiple
occasions before the District Court-and now again on
appeal-people of color are allegedly swept up in the stings
in disproportionate numbers.

These
elements of controversy are bound up in the three claims
Washington now raises on appeal. Two are constitutional
claims: Washington challenges his conviction and sentence by
arguing that the use of the statutory mandatory minimum term
violated his rights to due process, and he also alleges that
the attorney who represented him at trial rendered
constitutionally ineffective assistance. While stash-house
reverse stings can raise constitutional concerns, the use of
a mandatory minimum sentence on these particular facts did
not deprive Washington of his right to due process. And while
this is the rare case where a claim of ineffective assistance
of counsel was properly raised on direct appeal instead of
through a collateral attack, Washington has not shown
prejudice sufficient to call into doubt the integrity of his
trial. We thus conclude that both constitutional claims are
without merit.

The
remaining claim challenges the District Court's decision
to deny Washington pretrial discovery on ATF's operations
and enforcement statistics. Washington contends that, in
denying his motion, the District Court erroneously relied on
the hard-to-meet test for "selective prosecution"
discovery developed by the Supreme Court in United States
v. Armstrong[2] and United States v.
Bass[3] (which we will refer to as
"Armstrong/Bass"). He encourages
us to follow instead the en banc Seventh
Circuit's recent opinion in United States v.
Davis, [4] which distinguished between claims of
selective prosecution and selective law enforcement
and appeared to endorse a relaxed discovery standard for the
latter.

Like
the Seventh Circuit, we conclude that the proposed
distinction between enforcement and prosecution is well
taken, and that the law supports greater flexibility when the
discretionary decisions of law enforcement, rather than those
of prosecutors, are targeted by a defendant's request for
discovery. We therefore hold that a district court may
exercise its discretion to grant limited discovery, or
otherwise to conduct in camera analysis of
government data before deciding whether limited discovery is
warranted. A district court may do so even if a defendant
seeking discovery on a selective enforcement claim has not
otherwise met his or her full burden under
Armstrong/Bass. Because the District Court
in this case thought that its discretion was cabined by
Armstrong/Bass, and because we cannot
otherwise say that the same result would have occurred under
the standard we announce today, we will vacate the orders
denying discovery and remand for limited post-judgment
proceedings. The judgment of conviction and sentence are
otherwise unaffected by this remand.

Codefendant
and ringleader Dwight Berry came to the attention of the ATF
in late 2012, when he made it known that he was interested in
conducting robberies of drug users and dealers. In the course
of asking around, Berry spoke to an acquaintance who,
unbeknownst to him, was an ATF confidential informant
("CI"). The CI alerted the ATF, which determined
that Berry's criminal history fit its required profile
for a sting operation and opened an investigation in February
2013, under the supervision of ATF Special Agent John Bowman.
From here on out, many of the meetings and phone calls about
the developing robbery plan would be surreptitiously recorded
for playback at trial.

Meanwhile,
the CI kept Berry on the line with word of a connection: a
drug-courier friend who frequented a South Philadelphia stash
house on his trips to and from New York. When Berry and the
CI met again, they were joined by the supposed drug
courier-in reality, undercover ATF Special Agent Patrick
Edwards, a veteran of over a dozen robbery scenarios. In his
role as the courier, Edwards reported seeing over 10
kilograms of cocaine (in the context of cocaine
"bricks") inside a cooler during a trip to the
stash house. Berry indicated that he knew of a crew who might
be interested in participating in the robbery and that he was
willing to engage in violence if necessary.

Washington
first entered the picture about a week and a half after this
encounter as one of two members of Berry's proposed
robbery crew (the other man, never identified, apparently
dropped out of the plan shortly afterwards). At another
meeting in early March 2013 with Berry, Edwards, and the CI,
Washington probed Edwards about the logistics of the robbery:
what level of resistance they could expect, whether the house
would be watched from the outside, and so on. Prompted by
Edwards, the conspirators also discussed how to move and sell
the stolen cocaine.[6]

In a
subsequent phone discussion, Edwards pressed Berry on the
professionalism of his crew. Berry, in an attempt to
reassure, told Edwards that "[t]his is what [our crew]
do[es]."[7] When Edwards singled out Washington for
concern over a perceived lack of robbery experience, Berry
said that Washington "rock[ed] out" and "put
work in, " which Edwards interpreted to mean that
Washington was some sort of shooter or
enforcer.[8]

On the
day of the robbery, Washington and Berry met at Berry's
mother's house, where Berry picked up two guns and hid
them in an Eggo Waffles box. The group, which had added two
new members-codefendants Antonio Ellis and Jermau
Johnston-then gathered in the parking lot of the Philadelphia
Airport Hilton to review its plan. (Washington's
girlfriend was also present, although she did not participate
and remained in her parked car.) Edwards went over the
salient details once more, emphasizing the 10 kilograms of
cocaine and explaining that no money would be found in the
house.

In
three cars-Berry, Ellis, and Johnston in a minivan;
Washington and his girlfriend (the latter driving) following
behind in a Chrysler 300; and Agent Edwards bringing up the
rear-the crew made its way to the chosen address on Passyunk
Avenue in southwest Philadelphia. As the caravan moved in,
agents swooped down. All but Berry surrendered; Berry fled on
foot but was apprehended shortly afterwards. From the
minivan, law enforcement recovered two guns, ammo, gloves,
and zip-ties. From Washington's Chrysler 300, they
recovered a backpack, gloves, a mask, a lighter, and lighter
fluid.

B.
Procedural History

What
follows is an abbreviated summary of the criminal
proceedings, setting up the claims that Washington now raises
on appeal. We will return in greater detail to the salient
parts later, in the Analysis section of this opinion.

1.
Indictment; Codefendants Plead Guilty

In
April 2013, the four men were indicted in the Eastern
District of Pennsylvania. Counts 1 and 2 of the indictment
charged attempt/conspiracy to commit Hobbs Act robbery (18
U.S.C. § 1951(a)), while counts 3 and 4 charged
attempt/conspiracy to possess with intent to distribute five
kilograms or more of cocaine (21 U.S.C. § 846 through 21
U.S.C. § 841(a)(1), (b)(1)(A)). Count 5 charged all of
the defendants with carrying a firearm during a crime of
violence (18 U.S.C. § 924(c)) and count 6 charged all
but Johnston with being felons in possession of a firearm (18
U.S.C. § 922(g)(1)).[9]

Washington's
codefendants eventually pleaded guilty. Johnson and Ellis
received 27-month and 46-month sentences, respectively.
Although Berry, the ringleader, faced a Guidelines range of
270-322 months, his binding plea agreement reflected a
180-month sentence, [10] and the government did not seek to
formally introduce his previous, eligible convictions to
secure an enhanced mandatory minimum penalty. Berry
ultimately received the agreed-upon 180-month custodial
sentence.

Unlike
his codefendants, Washington pleaded not guilty and prepared
for trial. He was assigned a Criminal Justice Act attorney,
whom we will refer to as the "defense counsel" or
"trial counsel."

2.
Motion for Discovery

During
the pretrial phase, Washington moved (both pro se and through
trial counsel) for discovery relating to sting operations and
related prosecutions, which he claimed to be racially
motivated. Trial counsel's filing cited three prior
federal prosecutions in which all of the defendants were
African American. The moving papers also clarified that the
discovery was sought not for trial defense, but rather to
support a motion to dismiss the indictment on the basis of
"racial profiling or selective prosecution . . . by the
Philadelphia District Office of [ATF] . . . in complicity
with" the U.S. Attorney's Office.[11]

After
oral argument, and as set forth in a thoughtful opinion, the
District Court denied Washington's motion for discovery.
Finding the Armstrong/Bass standard to
control, the District Court held that Washington failed to
meet this "rigorous standard to obtain discovery,
"[12] and later denied Washington's
requests for reconsideration.

With
discovery denied, Washington did not file an actual motion to
dismiss the indictment, and the parties otherwise prepared
for trial. In an important ruling, the District Court decided
that the government could use the audio and video recordings
and related transcripts at trial. Meanwhile, the government
filed a 21 U.S.C. § 851 information stating that
Washington had a prior Pennsylvania drug felony conviction
from 2004-a prerequisite to enhanced mandatory minimum
penalties at sentencing.

4.
The District Court Revisits Discovery on the Eve of
Trial

In June
2015, prior to opening statements, the District Court
revisited the matter of discovery in the context of trial
defenses. Referring back to United States v.
Alexander, [13] a Northern District of Illinois opinion
cited in the earlier decision denying discovery, the District
Court ordered the government to release redacted portions of
an ATF policy manual on stash house sting
operations-patterned after the disclosures ordered in
Alexander. The District Court then issued a
protective order restricting defense counsel's use of the
disclosed material.

5.
Washington's Trial

Over
the five-day trial, defense counsel used the ATF disclosures
to advance his theory of the case: Washington did not have
the requisite intent to commit a dubious, discriminatory
"conspiracy" that ATF had designed from the ground
up.[14] For instance, counsel pointed to
Washington's use of a separate vehicle and the presence
of his girlfriend on the day of the robbery to suggest that
he was cautious and not fully committed. Counsel also
utilized the disclosed ATF materials to cross-examine
supervising ATF Agent Bowman.

But
during that cross-examination, trial counsel appeared to
fumble. He was attempting to show that, as Agent Bowman would
later admit, the only person "targeted" by the ATF
prior to the arrest was Berry, and that the ATF knew nothing
about the other conspirators and could not have ensured that
they fit its target profile, which required (in part) a
violent criminal history. But in addition to asking whether
Washington had a prior robbery arrest (which he did not),
trial counsel also asked Agent Bowman whether Washington had
a drug arrest. This question effectively allowed the
prosecution to bring out Washington's prior drug
conviction on redirect.

6. The Jury Verdict

The
jury returned a guilty verdict on counts one through four of
the superseding indictment: the drug and Hobbs Act robbery
charges. It returned a not-guilty verdict on firearm count
five; firearm count six was dismissed on the government's
motion.[15] The jury specifically found that the
government proved beyond a reasonable doubt that the
(fictitious) cocaine at the center of the conspiracy was five
kilograms or more.

Shortly
after the trial, Washington wrote a letter to the District
Court requesting a substitution of attorney. He alleged, in
part, that trial counsel had been under the influence of
alcohol throughout the trial.

The
District Court swiftly reacted, appointing a new Criminal
Justice Act attorney, Mark Greenberg-who has represented
Washington ever since-in what became, in effect, a
pre-sentencing investigation of trial counsel's
performance. After the District Court held an evidentiary
hearing, Attorney Greenberg filed a formal motion for new
trial predicated on the alleged ineffective assistance of
trial counsel. This motion included an attack on trial
counsel's questions during cross-examination of Agent
Bowman that opened the door to the introduction of
Washington's drug conviction. The motion was ultimately
denied, with the District Court finding in part that the
"mountain" of evidence against Washington
forestalled a showing of prejudice under the two-part
Strickland v. Washington[16] test for ineffective
assistance of counsel.[17]

8.
Sentencing Proceedings

The
ineffectiveness question resolved for the time being, the
parties and District Court prepared for sentencing. Because
of his criminal history, Washington was classified as a
"Career Offender" under the Sentencing Guidelines.
As a result of Guidelines calculations we need not delve
into, that Career Offender status overrode the lower
Guidelines level derived from quantity of drugs, yielding a
sentencing range of 360 months to life in
prison.[18]

In his
sentencing memoranda, Washington challenged the proposed
sentencing range, emphasizing the troubling nature of the
sting operation and requesting that the District Court take
into account the sentences of his co-conspirators. He also
asked the District Court to disregard the mandatory minimum
sentence of 20 years; if "the reverse sting in this case
involved 0.9 kilograms of non-existent cocaine, " he
argued, "Mr. Washington would not be facing a mandatory
minimum sentence."[19] In response, the government
emphasized that the mandatory minimum penalty was just that:
mandatory. Evincing some discomfort with the 20- year
mandatory minimum, the District Court nevertheless ruled that
he was "bound to follow the law, "[20] imposing a
24-month sentence on the Hobbs Act robbery charges and a
240-month consecutive sentence on the drug charges for a
total term of 264 months' imprisonment. Washington timely
appealed.[21]

II.Analysis

Washington's
constitutional challenges, which directly attack the judgment
of conviction and sentence, are considered first. We will
then turn to his Armstrong/Bass discovery
claim.

A.
Ineffective Assistance of Counsel

Although
he again invokes trial counsel's alcohol use, Washington
otherwise limits his ineffectiveness claim on appeal to the
incident where trial counsel opened the door to testimony
about his drug conviction. He attacks the District
Court's determination that the "overwhelming"
evidence at trial precluded a showing of prejudice, and
emphasizes, in particular, the jury's acquittal on the
firearm count and an alleged conflation of the prejudicial
impact of the admission on the robbery counts with the
far-greater impact on the drug counts.

1. Ineffectiveness Claims on Direct Appeal

We open
with the observation that ineffective assistance of counsel
claims are generally not considered on direct appeal.
Instead, they are more commonly brought in a collateral
proceeding, such as through a post-conviction 28 U.S.C.
§ 2255 motion to vacate.[22]

Our
"general aversion"[23] to reaching ineffectiveness
claims on direct appeal derives in part from their inherently
collateral nature. The trial record, concerned as it is with
the defendant's guilt or innocence, will not in most
instances be "developed precisely for the object of
litigating or preserving the [ineffective assistance] claim
and thus [will] often [be] incomplete or inadequate for this
purpose."[24] Deferring the question of
ineffectiveness to collateral review also protects criminal
defendants from the consequences of resolving the claims
prematurely.[25]

While
cautioning that we will not "open[] the door to
ineffective assistance of counsel claims on direct appeal as
a matter of course, " we have nevertheless recognized an
exception to the rule when the trial record "is
sufficient to allow determination of ineffective assistance
of counsel."[26]Determining sufficiency is case- and
claim-dependent.

We
think that Washington's is the uncommon case where
resolving an ineffectiveness claim on direct appeal is both
feasible and efficient. Strictly speaking, he is not raising
ineffectiveness for "the first time" on appeal.
Rather, ineffectiveness was invoked in and resolved by the
District Court, which held a post-trial, pre-sentencing
hearing at which Washington and the AUSA both testified
(trial counsel was invited to testify, but declined). The
District Court-the trial judge-then denied the claim against
the backdrop of the recently concluded trial.[27] This
development of the record amounted to, in effect, a mini
collateral proceeding, akin to what is ordinarily expected
under § 2255. It provides us with a sufficient
foundation for direct appellate review.[28] We therefore
exercise our discretion to reach the ineffectiveness
claim.[29]

2. Strickland v. Washington and Standard of
Review

"Regardless
of whether an ineffective assistance of counsel claim is
raised in a motion for a new trial, on collateral review, or
on direct appeal, the standard of review is the
same."[30] Under the familiar two-part standard
established in Strickland v. Washington,
[31]
Washington bears the burden of showing 1) that trial
counsel's actions "were not supported by a
reasonable strategy" and 2) that trial counsel's
errors were prejudicial.[32] "[B]oth deficiency and prejudice
must be proven to have a valid claim for
relief."[33]On appeal of the District Court's
decision, we exercise plenary review over the legal
components of ineffectiveness, assess any underlying findings
of fact for clear error, and "exercise independent
judgment on whether those facts, as found by the District
Court, show that counsel rendered ineffective
assistance."[34]

We
agree with the District Court that the general allegations of
alcohol use do not require a departure from
Strickland's two-prong standard-a point conceded
by Washington in his new-trial memorandum.[35] Alcohol or
drug use by trial counsel can certainly be relevant to both
parts of an ineffectiveness inquiry, especially if amplified
or systemic, or on close questions of strategy and jury
perception. But on these facts, alleged substance abuse is
not, without more, one of the rare forms of dereliction
amounting to the per se denial of a defendant's
Sixth Amendment right to the effective assistance of
counsel.[36]

3.
Trial Counsel's Cross-Examination of Agent
Bowman

Washington
now limits his ineffectiveness allegation to the
cross-examination of ATF Agent John Bowman, which allowed the
prosecutor to bring out Washington's previous drug
conviction on redirect. He argues that trial counsel's
line of questioning lacked a strategic basis and caused him
prejudice, as it undermined the "not committed to the
crime" theory of defense.

By way
of background: Agent Bowman, who managed the ATF's
investigation of the conspiracy, was called to testify as the
government's final witness. His testimony established,
among other things, the authenticity of the recorded calls
and meetings among the conspirators (or "conspirator,
" in the case of the undercover Agent Edwards) and their
incriminating nature. For instance, Bowman testified that at
the March 5 meeting, Berry assured Agent Edwards that
Washington was committed to the robbery plan.

Trial
counsel's extensive cross-examination of Agent Bowman
dealt in part with inconsistencies in the investigation and
in ATF's targeting of Washington. Counsel also probed the
racial dimensions of ATF sting operations; Bowman admitted
that he had participated in three Philadelphia sting
operations, all of which targeted only African American
defendants. (A similar response had earlier been elicited
from Agent Edwards, who admitted that perhaps two defendants
in over 13 scenarios were not African American-and both of
those were Latino.)

But
Washington did have a drug conviction. In fact, just
a few days before Bowman took the stand, the government had
filed its 21 U.S.C. § 851 information identifying a
"prior felony controlled substance violation" that
it intended to use "as the basis for increased
punishment" in the event that Washington was
convicted.[39]

While
Bowman had not directly confirmed Washington's criminal
history on cross, the prosecutor saw the door swing open and,
on redirect, invited Agent Bowman to stroll through it:

Q: [Trial counsel] asked you some questions about Mr.
Washington's criminal history.

A: Yes.

Q: You said you weren't sure when he asked you specific
questions about whether he had a drug conviction, whether he
had a robbery conviction, whether he had a violent crime
conviction. You said, I don't recall --

. . .

Q: You said you weren't sure, correct?

A: Correct.

Q: I want to take a moment and show you Government Exhibit
403, 404 and 405. That's Government Exhibit 403.
Let's move on to 404. And lastly, we move on to
Government Exhibit 405. Did you review those three exhibits?

A: Yes.

Q: And after reviewing them, are you sure whether or not Mr.
Washington has a prior drug conviction?

After
this exchange, the issue of Washington's criminal history
does not appear to have come up again during trial. Further,
trial counsel did not request, and the District Court did not
give, any limiting instruction.

4.
Strickland's Prejudice Prong

We may
consider the two Strickland prongs in either order;
and, as we have observed, it is "often practical to
consider the prejudice prong first, "[41] not the least
because we "prefer[] to avoid passing judgment on
counsel's performance when possible."[42] Accordingly,
we turn first to prejudice, which requires showing a
"reasonable probability"-a "probability
sufficient to undermine confidence in the outcome"-that,
"but for counsel's unprofessional errors, 'the
result of the proceeding would have been
different.'"[43]

At the
outset, we agree with the District Court that the evidence
admitted at trial against Washington was daunting and,
generally, damning. His recorded statements alone, bluster or
not, showed a willing and inquisitive member of the
conspiracy. On the day of the robbery itself, Washington
appeared committed to its success.[44] Washington attempts to
push back on this reading of the record, but the big picture
of the trial works against him.

For
instance, in support of his argument that the evidence was
not actually "overwhelming, " he points out that
the jury acquitted him of the count-five § 924(c) gun
charge-which, unlike counts 1 through 4, was not a conspiracy
or attempt charge. This is true, but we struggle to assign it
more than limited relevance. The trial evidence showed that
Berry, not Washington, hid the guns in the Eggo Waffles box,
which he then handed to co-conspirator Johnson. The guns were
found in the minivan, not

Washington's
Chrysler, when the caravan was taken down. Culpability
arguably shifted away from Washington, and he has not
satisfactorily shown how the jury's apparent doubt with
the firearm count is linked with the quantum of proof on the
remaining counts of the indictment.

Similarly,
Washington points to two jury requests- one to see the video
of the takedown, and another regarding the definition of
entrapment or enticement-as indicative of its hesitance to
convict. The video was played back, and both the prosecution
and defense agreed that entrapment was not at issue. Beyond
that, we do not think that the jury's questions evince
the kind of doubt that might meet Washington's burden for
showing prejudice. If anything, all we can draw from the
acquittal on this count is that the jury took seriously its
duty to view the trial evidence on a count-by-count
basis.[45]

Washington
also argues that the District Court erred by failing to
separate the Hobbs Act robbery and drug counts in determining
prejudice, contending the testimony about his drug
conviction, and thus his propensity, affected the latter far
more than the former.[46] He emphasizes that the defense's
theory of the case rested in part on caution and lack of
culpable intent, and points to selections of the recordings,
admitted at trial, that show (or so he claims) that he was
wary of cocaine and was not interested in dealing with it or
otherwise becoming involved. In one of these, Washington is
recorded as saying that he "don't fuck with
coke."[47]

Even in
light of the defense's theory of the case, however, we do
not agree that the charges can be so neatly separated.
Washington wants us to view the likelihood of prejudice from
admitting the conviction as higher for the drug counts than
the robbery counts.[48] The fundamental flaw of Washington's
argument is that he never quite explains, in a way that
satisfies his Strickland burden, why he would have
participated in the robbery, or even in its planning stages,
if not for the cocaine. According to the testimony
of ATF Agent Edwards, the "drug courier" told the
other members of the conspiracy that no money would be found
in the house. Even if Washington did not intend to personally
handle the cocaine or move it for sale, he could not help but
know that cocaine was the object of the robbery. Viewed
against this backdrop, the "I don't fuck with
coke" statement does not carry the expansive and
exculpatory meaning that he would like to attribute to it.
Moreover, we agree with the government that the broader
defense strategy of the case, which focused on showing that
Washington lacked the violent criminal history required for
ATF targeting, was not necessarily undermined by a fleeting
mention of Washington's prior drug conviction, especially
in light of his apparent willingness to participate in the
broader drug conspiracy.[49]

We do
not mean to trivialize the introduction into the case of
Washington's drug conviction; although we do not formally
reach the Strickland performance prong, we struggle
to perceive a strategic basis for opening the door.
Nevertheless, we agree with the District Court that
Washington has not met his burden, under Strickland,
of showing that the mistake undermined confidence in the
jury's verdict.[50] Accordingly, the ineffective assistance
claim fails.

B. Mandatory Minimum Due Process Challenge

In
challenging his 264-month sentence, Washington argues that
the District Court erred in following the 20-year mandatory
minimum term set forth in 21 U.S.C. § 841(b)(1), which
(as applicable here) kicks in when the quantity of cocaine is
5 kilograms or above and the defendant has a prior felony
drug conviction. He does not appear to disagree with the
government that, in the ordinary course of things, the
"mandatory" minimum is precisely what it says on
the tin.[51]Nor does he argue that the facts
supporting the mandatory minimum sentence-an indictment
charging 5 kilograms or more of cocaine, a corresponding jury
verdict, and a properly filed § 851 notice of a prior
conviction-were absent or infirm. Rather, he contends that
its application in this kind of case, where the comprising
elements were entirely fictitious and in the hands of the
government, violates his right to due process.

1. Standard of Review

We
begin by noting that although Washington did object to the
mandatory minimum at sentencing, he argued there on the basis
of congressional intent, not due process. The due process
argument also does not appear in his three sentencing
memoranda. While Washington's failure to develop the
constitutional basis for his objection might ordinarily limit
the scope of our review, we retain discretion to reach
unpreserved arguments in appropriate
circumstances.[52] Here, the government asks us to conduct
de novo review and responds to Washington's
argument on the merits. While a party's concession does
not control the exercise of our discretion, it is certainly a
factor we may consider. Hence, because Washington did raise
an objection to the application of the mandatory minimum
sentence, and the argument that he relied on came within a
stone's throw of the one he raises now, we will
"waive the waiver" and consider Washington's
claim on the merits.[53] As a constitutional challenge to the
mandatory minimum, it draws plenary review.[54]

Washington's
due process challenge falls within the broader category of
"outrageous government conduct"-that is, an
allegation that the government's conduct was so
outrageous that due process and fundamental fairness cannot
abide the defendant's conviction.[56] In our
hallmark case on the doctrine, United States v.
Twigg, we decided that a meth scheme that was
substantially engineered by the government-agents supplied
precursor chemicals (at a significant discount), glassware,
and a rented farmhouse for a lab-displayed the requisite
level of outrageousness.[57]Twigg led to the ultimate
sanction: reversal of the defendant's
conviction.[58]

But
Twigg, decided in 1978, is apparently one of only
"two reported court of appeals decisions . . . that have
deemed the government's conduct so outrageous as to
violate due process."[59] We have found no occasion
since Twigg in a published decision to reverse a
conviction or invalidate an indictment on the theory that the
government has strayed outside of the boundaries contemplated
by due process.[60] In United States v. Dennis, for
instance, we refused to dismiss an indictment in a reverse
sting case not dissimilar to the one now at bar, while
emphasizing the "exceedingly great" evidentiary
burden placed on the challenging defendant.[61]

While
our Twigg decision recognized an outrageous
government conduct claim in the context of an attack on an
indictment-and, by extension, the fact of the judgment of
conviction itself-other courts have applied similar reasoning
to a narrower universe of sentencing-related claims, often
under the label "sentencing factor
manipulation"-although they have not done so
consistently.[62] The Eleventh Circuit described one model
of sentencing factor manipulation in United States v.
Ciszkowski:

[S]entencing factor manipulation occurs when the
government's manipulation of a sting operation, even if
insufficient to support a due process claim, requires that
the manipulation be filtered out of the sentencing calculus.
Outrageous government conduct would necessitate the reversal
of a defendant's conviction, while sentencing factor
manipulation would simply reduce the sentence applied to his
conduct. . . . When a court filters the manipulation out of
the sentencing calculus before applying a sentencing
provision, no mandatory minimum would arise in the first
place.[63]

Our
previous precedential opinions have declined to take a
definitive stance on the viability of this doctrine in our
Circuit.[64] But even assuming without deciding that
the generous Ciszkowski framing of sentencing factor
manipulation should apply-requiring a lesser showing than an
"outrageous conduct" claim, and allowing for a
District Court to depart below the mandatory minimum range-we
find that Washington has failed to demonstrate, on the facts
of this case, that the mandatory minimum should be excised
from the indictment.

At
bottom, Washington argues that the government was uniquely
positioned to determine the salient facts of his offense,
which he was powerless to refute. Working through its
undercover operative and informant, the ATF did indeed set
the amount of the fictitious cocaine (10 kilograms) and
played up the likelihood of resistance (thereby encouraging
the conspirators to arm themselves).

But
even assuming some impropriety here on the part of the
government, most of the factors it created for the crime, and
which were within its unique control, were not the drivers of
Washington's actual sentence. Agent Edwards told the
conspirators that they would encounter resistance, so they
brought guns-and, had Washington been convicted of the gun
charge, he would have faced an additional mandatory
consecutive term.[65] But he was not. Further, Agent Edwards
told the conspirators that they could expect to recover 10
kilograms of cocaine in the robbery, corresponding to 2014
Guidelines base offense level of 30.[66] However, because he was a
career offender, Washington's Guidelines range was not
governed directly by the 10 kilogram drug-quantity amount-and
the District Court sentenced him far below the recommended
Guidelines range anyway.[67]

Instead,
the 20-year mandatory minimum was the product of two factors:
the 5 kilograms of cocaine charged in the indictment and
found by a jury, and the § 851 statement filed by the
government.[68] The latter, as the Supreme Court has
indicated, is a matter of discretion "similar to the
discretion a prosecutor exercises when he decides what, if
any, charges to bring against a criminal suspect . . . and is
appropriate, so long as it is not based upon improper
factors."[69] Washington does not argue that the
process envisioned by § 851 was not properly followed or
was based on impermissible considerations.[70]

So it
comes down, in the end, to the drug quantity. We acknowledge
Washington's concerns, which are well stated and logical,
that the drugs did not exist, and that his ironclad mandatory
minimum has no real-world foundation. Other courts of
appeals, however, have roundly rejected claims that amounts
greater than 5 kilograms, or even 10 kilograms, amount to
sentencing factor manipulation.[71] Further, Agent Edwards
testified at trial that the amount chosen for the sting was a
"conservative" number based upon the drug weights
found in "a typical [Philadelphia] stash
house."[72] He explained that the proposed scenario
"always has to be realistic" or it might be
questioned by the robbery crews.[73]Washington has not offered
anything to the contrary. Put simply, there is not enough
here for us to conclude that the government chose the 10
kilogram amount primarily, or even secondarily, "to
inflate [Washington's] sentence upon a
conviction."[74]

Washington
encourages us to follow the reasoning of United States v.
McLean, in which a different judge in the Eastern
District of Pennsylvania sentenced below the mandatory
minimum, on due process grounds, in a reverse-sting stash
house case.[75]McLean, which is nonbinding,
[76]
is also distinguishable. The defendant there received a
"split" jury verdict on the amount of cocaine
involved: 5 kilograms with regard to conspiracy but 500 grams
with regard to attempt.[77] We detect no equivalent ambiguity in
the jury's verdict on Washington's ultimate
culpability, and therefore reject this
argument.[78]

In
sum, we conclude that the 5 kilograms of cocaine charged in
the indictment and found by the jury did not amount to an
impermissible manipulation of sentencing factors by the
government. To the extent that the fictitious 10 kilogram
quantity is relevant, we find too that Washington has shown
neither improper manipulation nor prejudice. Nevertheless, we
remind the government that we have expressed misgivings in
the past about the wisdom and viability of reverse stash
house stings. That this case fell on the safe side of the due
process divide should not be taken to indicate that all such
prosecutions will share the same fate. As one of our
colleagues said in a prior case, "I do not find it
impossible for the Government to exercise its discretion
rationally to set up stash house reverse stings. But I share
the concern that this practice, if not properly checked,
eventually will find itself on the wrong side of the
line."[79]

C.
Selective Enforcement Discovery Claim

Finally,
Washington appeals in part the denial of his pretrial motion
for discovery, which he filed in order to "prepare a
motion to dismiss the indictment on the basis of racial
profiling and/or selective prosecution of racial minorities
by the ATF Office in Philadelphia, in conjunction with the
local U.S. Attorney's Office."[80] He contends
that the District Court erred in applying a strict discovery
standard- Armstrong/Bass-to the portions of
his motion that pertained to law enforcement and ATF material
on stash-house reverse stings, as opposed to those portions
(the denial of which he does not appeal) that sought
information related to the prosecution of those offenses.
Instead of employing Armstrong/Bass,
Washington contends, we should follow the Seventh
Circuit's opinion in United States v. Davis,
which appeared to depart from the
Armstrong/Bass model for claims of
selective enforcement in stash house cases.

While
discovery rulings are ordinarily reviewed for abuse of
discretion, "we exercise de novo review over
the standards the district court used in exercising its
discretion."[81]And although we decline to adopt
Davis wholesale, we nevertheless agree with the
Davis court that district judges have more
flexibility, outside of the Armstrong/Bass
framework, to permit and manage discovery on claims like
Washington's. Accordingly, as explained further below, we
will vacate the District Court's discovery orders and
issue a limited remand for further post-judgment proceedings.

Washington's
argument rests on the distinction between "selective
prosecution" and "selective enforcement, "
labels that we (and others) sometimes deploy interchangeably.
Here, we use them as Washington does. "Prosecution"
refers to the actions of prosecutors (in their capacity as
prosecutors) and "enforcement" to the actions of
law enforcement and those affiliated with law-enforcement
personnel.

We
start with a point of commonality. Substantive
claims of selective prosecution and selective enforcement are
generally evaluated under the same two-part test, which is
derived from a line of seminal Supreme Court cases about the
collision between equal protection principles and the
criminal justice system.[82] A defendant challenging a criminal
prosecution at either the law enforcement or prosecution
inflection points must provide "clear evidence" of
discriminatory effect and discriminatory intent (the latter
is sometimes referred to as "discriminatory
purpose").[83]Meeting this standard generally requires
evidence that similarly situated individuals of a difference
race or classification were not prosecuted, arrested, or
otherwise investigated.[84]

2. Armstrong/Bass: "Some
Evidence"

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A
criminal defendant, however, will not often have access to
the information, statistical or otherwise, that might satisfy
a "clear evidence" burden. Thus, the two component
cases that make up the Armstrong/Bass
test-United States v. Armstrong[85] and
United States v. Bass[86], both of which arose from
selective prosecution challenges-propounded a facially less
rigorous standard for criminal defendants seeking
discovery on an anticipated selective prosecution
claim. Instead of "clear evidence, " a successful
discovery motion can rest on "some
evidence."[87] "Some evidence" must still
include a showing that similarly situated persons were not
prosecuted.[88] Furthermore, ...

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